Administration of Criminal Justice – Capital Punishment – Factors to be considered – Appellant convicted for the rape and murder of a 3 year old girl – Conviction as also capital punishment awarded to the appellant was confirmed by the High Court – Appeals filed by the appellant before Supreme Court – Dismissed – Review Petitions also dismissed – However, review petitions restored in view of Constitution Bench decision of Supreme Court in Mohd. Arif alias Ashfaq case – Held: Ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence – But there is no hard and fast rule that death sentence should not be awarded in a case of circumstantial evidence – If the court has some doubt, on the circumstantial evidence on record, that the accused might not have committed the offence, then a case for acquittal would be made out – If the court is inclined to award the death penalty then there must be some exceptional circumstances warranting the imposition of the extreme penalty – In the instant case, samples were taken from the body of the accused and sent for DNA profiling, however, the result was not produced before the trial court – There is no explanation for this – In the absence of any justification for not producing the DNA evidence, it would be dangerous, on the facts of this case, to uphold the sentence of death of the appellant – Further, probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously considered by the courts before awarding the death sentence – It is the obligation on the prosecution to prove, through evidence, that the probability is that the convict cannot be reformed or rehabilitated – For the purposes of sentencing, the Sessions Judge, the High Court as well as Supreme Court did not take into consideration the probability of reformation, rehabilitation and social re-integration of the appellant into society – Further, trial court was also in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, consider – However, looking to the crimes committed by the appellant and the material on record including his overall personality and subsequent events, the sentence of death awarded to the appellant is commuted but the appellant should not be released from custody for the rest of his normal life – Penal Code, 1860– ss.376(2)(f), 377 and 302– Evidence Act, 1872 – s.54 – CrPC, 1973 – s.354. Evidence – DNA – Forensic science – Importance of – Held: DNA profiling is an extremely accurate way of comparing specimens and such testing can make a virtually positive identification – Where DNA profiling has not been done or it is held back from the Trial Court, an adverse consequence would follow for the prosecution – Cr.P.C., 1973 – ss.53-A, 164-A.
Sentence/Sentencing – Prior history of the convict or criminal antecedents – If to be considered – Held: Mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding a sentence – Not only is it statutorily impermissible (except in some cases) but even otherwise it violates the fundamental presumption of innocence – a human right - that everyone is entitled to.
Disposing of the review petitions, the Court
HELD: 1.1 Ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence. But there is no hard and fast rule that death sentence should not be awarded in a case of circumstantial evidence. The precautions that must be taken by all the courts in cases of circumstantial evidence is this: if the court has some doubt, on the circumstantial evidence on record, that the accused might not have committed the offence, then a case for acquittal would be made out; if the court has no doubt, on the circumstantial evidence, that the accused is guilty, then of course a conviction must follow. If the court is inclined to award the death penalty then there must be some exceptional circumstances warranting the imposition of the extreme penalty. Even in such cases, the court must follow the dictum laid down in Bachan Singh that it is not only the crime, but also the criminal that must be kept in mind and any alternative option of punishment is unquestionably foreclosed. The reason for the second precaution is that the death sentence, upon execution, is irrevocable and irretrievable. [Para 29][606-C-F]
Reform, rehabilitation and re-integration into society
1.2 The probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the “special reasons” requirement of Section 354(3) of the Cr.P.C. and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well. [Para 45][612-D-F]
1.3 If an inquiry of this nature is to be conducted, as is mandated by the decisions of this Court, it is quite obvious that the period between the date of conviction and the date of awarding sentence would be quite prolonged to enable the parties to gather and lead evidence which could assist the Trial Court in taking an informed decision on the sentence. But, there is no hurry in this regard, since in any case the convict will be in custody for a fairly long time serving out at least a life sentence. It is for the prosecution and the courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social re-integration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible. [Paras 46, 47][612-F-G; 613-D-E]
1.4 In other words, directing imprisonment for a period greater than 14 years (say 20 or 25 years) could unquestionably foreclose the imposition of a sentence of death, being an alternative option to capital punishment. [Para 48][613-E-F] DNA evidence
2.1 While Section 53-A of the Cr.P.C. is not mandatory, it certainly requires a positive decision to be taken. There must be reasonable grounds for believing that the examination of a person will afford evidence as to the commission of an offence of rape or an attempt to commit rape. If reasonable grounds exist, then a medical examination as postulated by Section 53-A(2) of the Cr.P.C. must be conducted and that includes examination of the accused and description of material taken from the person of the accused for DNA profiling. Similarly, Section 164-A of the Cr.P.C. requires, wherever possible, for the medical examination of a victim of rape. Of course, the consent of the victim is necessary and the person conducting the examination must be competent to medically examine the victim. [Paras 49, 50][613-F-H; 614-A, B-C]
2.2 For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53-A and Section 164-A of the Cr.P.C. It is not being suggested that if there is no DNA profiling, the prosecution case cannot be proved but certainly that where DNA profiling has not been done or it is held back from the Trial Court, an adverse consequence would follow for the prosecution. [Para 54][615-G-H; 616-A]
2.3 There is no dispute that samples were taken from the body of the accused and sent for DNA profiling. However, the result was not produced before the Trial Court. There is absolutely no explanation for this and in the absence of any justification for not producing the DNA evidence, it would be dangerous, on the facts of this case, to uphold the sentence of death on the appellant. [Para 57][616-F-H]
Prior history of the convict or criminal antecedents
3.1 The history of the convict, including recidivism cannot, by itself, be a ground for awarding the death sentence. There could be a situation where a convict has previously committed an offence and has been convicted and sentenced for that offence. Thereafter, the convict commits a second offence for which he is convicted and sentence is required to be awarded. This does not pose any legal challenge or difficulty. But, there could also be a situation where a convict has committed an offence and is under trial for that offence. During the pendency of the trial he commits a second offence for which he is convicted and in which sentence is required to be awarded. Sections 54 of the Indian Evidence Act, 1872 prohibits the use of previous bad character evidence except when the convict himself chooses to lead evidence of his good character. The implication of this clearly is that the past adverse conduct of the convict ought not to be taken into consideration for the purposes of determining the quantum of sentence, except in specified circumstances. [Paras 58, 59][617-A-D]
3.2 The mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding a sentence. Not only is it statutorily impermissible (except in some cases) but even otherwise it violates the fundamental presumption of innocence – a human right - that everyone is entitled to. In the present case there are two cases pending against the appellant for similar offences. Both these were pending trial. Notwithstanding this, the Trial Judge took this into account as a circumstance against the appellant. It would have been far more appropriate for the Sessions Judge to have waited, if he thought it necessary to take the pendency of these cases into consideration, for the trials to be concluded. [Paras 73, 74][623-B-D]
3.3 A Trial Judge can take his time and sentence the convict after giving adequate opportunity for the prosecution as well as for the defence to produce material so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence. Sentence of death should be awarded only in the rarest of rare cases, only if an alternative option is unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death is irrevocable and irretrievable upon execution. While the crime is important, the criminal is equally important insofar as the sentencing process is concerned. A perusal of the website of the eCourts Project of the eCommittee of the Supreme Court revealed that in fact there were a total of four cases against the appellant, including the present case. It is not informed whether the conviction orders passed against the appellant have been set aside or not. [Paras 75, 77][623-F-H; 624-C; 625-B]
Conclusion
4. Insofar as the present petition is concerned, for the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social re-integration of the appellant into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case. The prosecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the appellant for the purposes of sentencing. The Trial Court was also in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, consider. However, one also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant. For all these reasons, it would be more appropriate looking to the crimes committed by the appellant and the material on record including his overall personality and subsequent events, to commute the sentence of death awarded to the appellant but it is directed that he should not be released from custody for the rest of his normal life. [Paras 79, 80][625-D-H; 626-A-B]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 – followed.
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90 ; Sushil Sharma v. State (NCT of Delhi) (2014) 4 SCC
317 : [2013] 16 SCR 616 – relied on.
Shivaji alias Dadya Shankar Alhat v. State of Maharashtra (2008) 15 SCC 269 : [2008] 13 SCR 81 ; State of Maharashtra v. Shankar Krisanrao Khade 2008 ALL MR (Cri) 2143; Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546 : [2013] 6 SCR 949 ; Laxman Naik v. State of Orissa (1994) 3 SCC 381 : [1994] 2 SCR 94 ; Dhananjoy Chatterjee alias Dhana v. State of W.B. (1994) 2 SCC 220 : [1994]
1 SCR 37 ; State of Maharashtra v. Bharat Fakira Dhiwar (2002) 1 SCC 622 : [2001] 5 Suppl. SCR 12 ; State of Maharashtra v. Suresh (2000) 1 SCC 471 : [1999] 5 Suppl. SCR 215 ; Adu Ram v. Mukna (2005)
10 SCC 597 : [2004] 5 Suppl. SCR 314 ; Molai and Another v. State of M.P. (1999) 9 SCC 581 : [1999] 4 Suppl. SCR104 ; Rajendra Pralhadrao Wasnik v. State of Maharashtra (2012) 4 SCC 37 : [2012] 2 SCR
225 ; Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India (2014) 9 SCC 737: [2014] 11 SCR 1009; Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC
467 : [2007] 1 SCR 916; Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC 230: [2006] 10 Suppl. SCR
662 ; Swamy Shraddananda v. State of Karnataka (2007) 12 SCC 288 : [2007] 7 SCR 616 ; Swamy
Shradddananda (2) v. State of Karnataka (2008) 13 SCC 767 : [2008] 11 SCR 93 ; Sebastian v. State of Kerala (2010) 1 SCC 58 : [2010] 1 SCC 58 ; Ramesh v. State of Rajasthan (2011) 3 SCC 685: [2011] 4 SCR
585 ; Kalu Khan v. State of Rajasthan (2015) 16 SCC
492 ; Prakash Dhawal Khairnar (Patil) v. State of Maharashtra (2002) 2 SCC 35 : [2001] 5 Suppl. SCR 612 ; Lehna v. State of Haryana (2002) 3 SCC
76 : [2002] 1 SCR 377 ; Sandesh v. State of
Maharashtra (2013) 2 SCC 479 : [2012] 13 SCR
1049 ; Mohinder Singh v. State of Punjab (2013) 3 SCC
294 : [2013] 3 SCR 90 ; Birju v. State of Madhya Pradesh (2014) 3 SCC 421: [2014] 1 SCR 1047; Anil v. State of Maharashtra (2014) 4 SCC 69: [2014]
3 SCR 34; Mahesh Dhanaji Shinde v. State of
Maharashtra (2014) 4 SCC 292:[2014] 3 SCR 406; Chhannu Lal Verma v. State of Chhattisgarh Decided by Supreme Court on 28.11.2018 in Criminal Appeal Nos.1482 & 1483 of 2018; Sangeet v. State of Haryana (2013) 2 SCC 452 ; State of Gujarat v. Kishanbhai (2014) 5 SCC 108: [2014] 1 SCR 197 ; Mukesh and Anr. v. State (NCT of Delhi) (2017) 6 SCC 1 : [2017] 6 SCR 1; Selvi v. State of Karnataka (2010) 7 SCC
263 : [2010] 5 SCR 381 ; Mohd. Farooq Abdul Gafur v. State of Maharashtra (2010) 14 SCC 641 : [2009]
12 SCR 1093 ; Gurmukh Singh v. State of Haryana (2009) 15 SCC 635 : [2009] 13 SCR 548 ; Bantu v. State of M.P (2001) 9 SCC 615 : [2001] 4 Suppl. SCR
298 ; Amit v. State of Maharashtra (2003) 8 SCC 93 : [2003] 2 Suppl. SCR 285 ; Rahul v. State of
Maharashtra (2005) 10 SCC 322 ; Surendra Pal
Shivbalakpal v. State of Gujarat (2005) 3 SCC 127 : [2004] 4 Suppl. SCR 464 ; Her Majesty The Queen v. Norman Skolnick [1982] 2 SCR 47 – referred to. Scott Nathan Schluter v. Robin Laurence Trenerry (1997)
6 NTLR 194 – referred to.
(1980) 2 SCC 684
H [1994] 1 SCR 37
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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